Final Orders re: Approach iro Registration, Recognition & Enforcement of Foreign Judgments, Lex Causae and Lex Fori

Appealed
SC13-12 : VENETIAN BLINDS SPECIALISTS LTD vs APEX HOLDINGS (PVT) LTD
Ruled By: GARWE JA, OMERJEE AJA and GOWORA AJA

This is an appeal against the judgment of the High Court of Zimbabwe in which the court dismissed, with costs, a claim by the appellant for an order recognizing as legally binding and enforceable a judgment of the Supreme Court of appeal of Malawi. The latter judgment had ordered the respondent to pay to ...

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HH87-10 : VENETIAN BLINDS SPECIALISTS LIMITED vs APEX HOLDINGS (PRIVATE) LIMITED
Ruled By: PATEL J

The plaintiff herein seeks an order recognising as binding and enforceable as against the defendant a judgment granted by the Supreme Court of Appeal of Malawi on 11 September 2007. Pursuant to that judgment, the plaintiff claims from the defendant the sums of US$848,662=50 (with interest) and MK241,957=, as well as costs of suit on a legal ...

The plaintiff herein seeks an order recognising as binding and enforceable as against the defendant a judgment granted by the Supreme Court of Appeal of Malawi on 11 September 2007.

Pursuant to that judgment, the plaintiff claims from the defendant the sums of US$848,662=50 (with interest) and MK241,957=, as well as costs of suit on a legal practitioner and client scale. The defendant resists the claim on the ground that it has discharged its obligations under the judgment. In the alternative, the defendant avers that the Malawi Supreme Court misdirected itself to the extent that it would be contrary to public policy to recognise and enforce its judgment in this country.

The issues for determination, in casu, as reconsidered and confirmed at the commencement of trial, are as follows -

1. Whether the recognition of the judgment of the Malawi Supreme Court would be contrary to public policy under the law of Zimbabwe.

2. Whether the judgment has been wholly satisfied under the law of Zimbabwe.

3. What order of costs should be made by this court in the circumstances of this case.

Whether Malawi Judgment Contrary to Public Policy

The defendant avers that it would be contrary to public policy for the Malawi Supreme Court judgment to be recognised in Zimbabwe because it is fundamentally erroneous in several respects. In essence, it is averred that the court's award of special damages was based on the plaintiff's gross profit margin rather than its net profit contrary to established rules on the calculation of damages. It is, therefore, arbitrary, erroneous and inimical to the notion of justice, and, consequently, contrary to public policy. In this regard, reference is made to Tobacco Finance (Pvt) Ltd v Zimnat Insurance Company Ltd 1982 (3) SA 55 (ZH)..., where a policy-based enquiry into the concept of negligence was adopted and articulated as one that -

“is really governed by broader considerations such as the ordinary notion of justice, the interests of the claimant or the defendant as balanced against the community as a whole, and the economic or even social effects of the claim, all of which may be said to broadly reflect the policy of law.”

As regards the non-recognition of foreign judgments on the ground of public policy, the uniform approach in common law jurisdictions is to be extremely chary about delving into questions of legal or factual correctness. It is generally inappropriate to review a judgment of a foreign court of competent jurisdiction and to deny or withhold recognition, even if there is shown to be a clear misapprehension by that court of the law or facts founding its judgment. In the United States, for instance, it was stated as follows in the case of Hilton v Guyot 159 US 113 (1895) –

“Where there has been an opportunity for a full and fair trial abroad before a court of competent jurisdiction conducting the trial upon regular proceedings..., and there is nothing to show either prejudice in the court or in the system of law under which it was sitting, or fraud in procuring the judgment, or any other special reason why the comity of this notion should not allow it full effect, the merits of this case should not, in an action brought in this country upon the judgment, be tried afresh as on a trial or an appeal upon the mere assertion of the party that the judgment was erroneous in law or in fact. The defendant cannot be permitted, upon that general ground, to contest the validity of the effect of the judgment sued on.”

In similar view, CARDOZO J, in Loucks v Standard Oil Company of New York (1918) 224 NY 99..., took the view that -

“The courts are not free to refuse to enforce a foreign right at the pleasure of judges to suit the individual notion of expediency or fairness. They do not close their door unless help would violate some fundamental principle of justice, some prevalent conception of good morals; some deep-rooted tradition of the common weal.”

In England, this view was echoed in Fender v St.John Mildmay [1938] AC.., where LORD AITKEN declared that -

“[public policy] should only be invoked in clear cases in which harm to the public is substantially incontestable, and does not depend upon the idiosyncratic inferences of a few judicial minds.”

The approach in South Africa is no different. Thus, in Jones v Krok 1995 (1) SA 677 (A), the Appellate Division overturned a decision of the court a quo which declined to recognise a foreign award because of the apparently arbitrary and unacceptable approach of the foreign court in awarding damages for breach of contract. As was stated by CORBETT CJ -

“In my view, there is no valid basis, on the papers, for these findings by the court a quo; and, in any event, they seem to involve entering into the merits of the case adjudicated upon by the US Court, which, as I have pointed out, is not permissible. Accordingly, public policy afforded no ground for denying the appellant relief...,.”

In the instant case, it is common cause that the defendant voluntarily participated in the trial and appeal before the Malawian courts. Moreover, there is no doubt that the Malawi Supreme Court is a court of competent jurisdiction, nor is there any claim that its proceedings, on appeal, were anything other than procedurally correct. Ultimately, there is no evidence or averment of illegality, partiality or other fundamental irregularity vitiating the propriety of those proceedings. In any event, I am unable to perceive any persuasive justification for deviating from the circumspect approach expounded by the eminent jurists that I have cited above. In short, the public policy argument cannot avail the defendant.

I accordingly find that the recognition of the judgment of the Malawi Supreme Court would not be contrary to public policy under the law of Zimbabwe.

SC33-15 : APEX HOLDINGS (PRIVATE) LIMITED vs VENETIAN BLINDS SPECIALISTS LIMITED
Ruled By: GWAUNZA JA, GOWORA JA and GUVAVA JA

I turn now to consider the main appeal. The substance of the appellant's criticism was that the court a quo erred in proceeding to recognize the judgment granted in Malawi and have the same registered in Zimbabwe as a competent judgment. It was contended, further, that the court misdirected itself by applying an incorrect exchange ...

HH169-09 : GRAMARA (PRIVATE) LIMITED and COLIN CLOETE vs GOVERNMENT OF THE REPUBLIC OF ZIMBABWE and ATTORNEY-GENERAL OF ZIMBABWE and NORMAN KAPANGA (INTERVENER)
Ruled By: PATEL J

The two applicants herein were parties, together with 77 others, in a matter that was adjudicated by the Southern African Development Community Tribunal (the Tribunal) in the case of Mike Campbell (Pvt) Ltd & Others v The Republic of Zimbabwe Case No. SADC(T) 2/2007.

The Tribunal gave its judgment in favour of the applicants on the 28th of November 2008. They now seek an order for the registration of the decision of the Tribunal for the purposes of its enforcement in Zimbabwe....,.

Enforcement of Tribunal's Judgments

The jurisdiction and powers of the Tribunal are spelt out in the Treaty of the Southern African Development Community (the SADC Treaty) and in the Protocol of the Tribunal….,.

As regards the enforcement of the Tribunal's decisions, this is governed by Article 32 of the Protocol as follows:

“1. The law and rules of civil procedure for the registration and enforcement of foreign judgments in force in the territory of the State in which the judgment is to be enforced shall govern enforcement.

2. States, and institutions of the Community, shall take forthwith all measures necessary to ensure execution of the decisions of the Tribunal.

3. Decisions of the Tribunal shall be binding upon the parties to the dispute in respect of that particular case and enforceable within the territories of the States concerned.

4. Any failure by a State to comply with a decision of the Tribunal may be referred to the Tribunal by any party concerned.

5. If the Tribunal establishes the existence of such a failure, it shall report its finding to the Summit for the latter to take appropriate action.”

The overall effect of these provisions is that the decisions of the Tribunal are binding and enforceable within the territories of Member States which are under an obligation to take the measures necessary for the execution of those decisions.

However, such enforcement is governed by the rules of civil procedure for the registration and enforcement of foreign judgments which are in force in the territory of the State in which the particular judgment is to be enforced. In other words, it is the domestic rules of procedure of each Member State, as opposed to any uniform adjectival law of the Tribunal, which must govern the enforcement of a given judgment in the territory of that State.

Where any Member State fails to comply with a specific decision of the Tribunal that it is bound by, such non-compliance is referable, in the first instance, to the Tribunal, which must then refer the matter to the Summit for the latter to take appropriate action.

However, Article 32 does not explicate what remedial action may be taken, or by which authority or institution, in the event of a Member State's failure to comply with its broad obligation to take the measures necessary for the execution of the decisions of the Tribunal generally.

It is common cause that Zimbabwe has not taken any specific internal measures to domesticate the SADC Treaty or the Protocol of the Tribunal. More specifically, no legislative or administrative steps have been taken to implement Zimbabwe's obligations under Article 32 or to transform those obligations into effectual provisions of the municipal law.

Nevertheless, as is correctly contended for the applicants, a State cannot invoke its own domestic deficiencies in order to avoid or evade its international obligations or as a defence to its failure to comply with those obligations.

The fundamental tenet of international law is that pacta sunt servanda, viz. every party to a treaty in force is required to perform its obligations thereunder in good faith and, as a corollary to that obligation, such party may not invoke the provisions of its internal law, including its Constitution, as justification for its failure to perform the treaty: see Articles 26 and 27 of the Vienna Convention on the Law of Treaties (1969); see also SHAW: International Law (4th ed. 1997)…,.

However, it does not follow, as is further contended on behalf of the applicants, that the primacy of treaty obligations at international law must necessarily and invariably be taken into account in applying domestic law at the municipal level - even where there is a clear conflict between the two regimes.

As I have recently had occasion to opine in Route Toute BV & Others v Minister of National Security Responsible for Land, Land Reform and Resettlement & Others HH128-09…,:

“On the pragmatic approach that has come to be adopted in international practice, neither legal system enjoys primacy over the other. In principle, they both hold sway and supremacy in their respective domains. See BROWNLIE: Principles of Public International Law (4th ed.) at pp.34-35. The resultant divergence between the two systems is reconciled on the basis that the State incurs international responsibility for having violated its international obligations and must accordingly effect the requisite reparations in order to satisfy its international responsibility. See BROWNLIE, op. cit., at pp.35-37.”

Registration of Foreign Judgments in Zimbabwe

Insofar as concerns the registration of foreign civil judgments, the relevant statutory provisions presently in force in Zimbabwe are contained in the Civil Matters (Mutual Assistance) Act [Chapter 8:02].

Section 3 of the Civil Matters (Mutual Assistance) Act [Chapter 8:02] extends the application of the Act to the judgments of any international tribunal designated for that purpose.

The word “judgment” is defined, in section 2 of the Civil Matters (Mutual Assistance) Act, to mean “a judgment or order given or made by any court or tribunal requiring the payment of money, and includes an award of compensation or damages to an aggrieved party in criminal proceedings.”

The judgment that the applicants seek to register herein is essentially declaratory and injunctive in nature and is not one sounding in money.

Moreover, it is common cause that the decisions of the SADC Tribunal are not registrable or enforceable in terms of the Civil Matters (Mutual Assistance) Act for the simple reason that the Tribunal has not been specifically designated under the Act.

In any event, the Civil Matters (Mutual Assistance) Act is clearly not exhaustive in the coverage of its provisions.

Section 25 of the Civil Matters (Mutual Assistance) Act [Chapter 8:02] expressly acknowledges that the Act does not derogate from other laws and provides that:

“This Act shall be regarded as additional to, and not as limiting the provisions of any other law relating to the recognition and enforcement of foreign judgments, the service of process, or the taking of evidence, whether on commission or otherwise.”

It follows that the Civil Matters (Mutual Assistance) Act does not purport to override or exclude the operation of any other law, including the common law, pertaining to the recognition and enforcement of foreign judgments.

In effect, section 25 of the Civil Matters (Mutual Assistance) Act accords with the general rule of statutory interpretation that the common law cannot be ousted except by clear language or in express terms.

Both in England and in South Africa, it is well established that foreign judgments are cognisable and enforceable under the common law: see NORTH and FAWCETT: Cheshire and North's Private International Law (13th ed. 2004)…,; FORSYTH: Private International Law (4th ed. 2003)…,.

In South Africa, the procedure for and scope of recognition proceedings are lucidly expounded in JOUBERT (ed.): The Law of South Africa (First Reissue, 1993) Vol. 2…, as follows:

“…, the present position is that a foreign judgment is not directly enforceable in South Africa; but, if it is pronounced, by a proper court of law, and certain requirements are met, any determination therein (for example of a party's rights or status) will be recognised and the judgment will in fact found a defence of res judicata if it would have founded such a defence had it been a South African judgment. In addition, an authenticated foreign judgment constitutes a cause of action, and, as such, is enforceable by ordinary action in a South African court, including, where appropriate, an action for provisional sentence or for a declaratory order or for default judgment.

A South African court will not pronounce upon the merits of any issues of fact or of law tried by the foreign court and will not review or set aside its findings though it will adjudicate upon a 'jurisdictional fact' establishing international competency.”

The general requirements for recognition and enforcement of foreign judgments are set out in JOUBERT (ed.): The Law of South Africa (First Reissue, 1993) Vol. 2…,. These requirements were adopted and applied by the Appellate Division in Jones v Krok 1995 (1) SA 677 (A)…, and in Purser v Sales 2001 (3) SA 445 (SCA)…,.

In Jones v Krok 1995 (1) SA 677 (A), CORBETT CJ summarised these requirements as follows:

“As is explained in Joubert…, the present position in South Africa is that a foreign judgment is not directly enforceable, but constitutes a cause of action and will be enforced by our Courts provided:

(i) That the court which pronounced the judgment had jurisdiction to entertain the case according to the principles recognised by our law with reference to the jurisdiction of foreign courts (sometimes referred to as 'international jurisdiction or competence');

(ii) That the judgment is final and conclusive in its effect and has not become superannuated;

(iii) That the recognition and enforcement of the judgment by our Courts would not be contrary to public policy;

(iv) That the judgment was not obtained by fraudulent means;

(v) That the judgment does not involve the enforcement of a penal or revenue law of the foreign State; and

(vi) That enforcement of the judgment is not precluded by the provisions of the Protection of Businesses Act 99 of 1978, as amended.”

In the present matter, counsel have not referred me to any Zimbabwean case authority on the subject, either following or deviating from the South African position, and I have been unable to readily locate any.

I accordingly take the view, pursuant to the provisions of section 89 of the Constitution governing the law to be administered by our courts, that our common law position is ad idem with the common law of South Africa as stated in the authorities cited above and that it has not been overtaken or significantly modified by local statute.

One further aspect that was not raised by counsel, but which I need to canvass, relates to the scope of recognition proceedings vis-a-vis the nature of the remedies that may properly be recognised and enforced through a foreign judgment.

The provisions of the of the Civil Matters (Mutual Assistance) Act [Chapter 8:02], and the two cases cited above, deal primarily with judgments sounding in money. They do not address judgments and rulings with broader proprietary implications and administrative consequences as is the case with the SADC Tribunal decision in casu.

Nevertheless, having regard to the general rules articulated in JOUBERT (ed.): The Law of South Africa (First Reissue, 1993) Vol. 2…, coupled with considerations of international comity in a globalised world, and provided that the judgment in question has been duly delivered by a court of recognised international competence and jurisdiction, it seems to me that it would be contrary to principle to restrict the scope of recognition proceedings by reference to the specific remedies enjoined by a given foreign judgment.

Issues for Determination

Notwithstanding the plethora of affidavit evidence and written legal argument filed of record, counsel for all of the parties herein concur that there are essentially two issues for determination in casu:

(i) The first is whether the SADC Tribunal was endowed with the requisite jurisdictional competence in the case before it.

(ii) The second is whether the recognition and enforcement of the Tribunal's decision in that case would be contrary to public policy in Zimbabwe.

Jurisdictional Competence

It is trite that any jurisdictional fact which negates the existence of any obligation imposed by a foreign judgment constitutes an effective bar to the actionability of that judgment. One such obvious negativing fact would be that the party impeaching the judgment owes no duty to obey the command of the court or tribunal purporting to impose the obligation.

The respondents' position on the status of the Tribunal is as follows:

The Agreement amending the SADC Treaty (the Amendment Agreement), which was signed on the 14th of August 2001, never entered into force because it was not ratified by Zimbabwe or by the prescribed number of SADC Member States. Therefore, in terms of Article 22 of the Treaty, as unamended, the Protocol of the Tribunal still requires the ratification of a Member State in order for that State to be bound by it. Since Zimbabwe has not ratified the Protocol, it is not bound by it and is not subject to the jurisdiction of the Tribunal. Consequently, the Tribunal lacked the requisite competence to adjudicate Mike Campbell (Pvt) Ltd & Others v The Republic of Zimbabwe Case No. SADC(T) 2/2007, and, therefore, its judgment in that case cannot be registered and enforced in Zimbabwe or anywhere else.

The Vienna Convention on the Law of Treaties (1969) is generally recognised as an authoritative restatement of established or emergent rules of international customary law on the subject of treaties: See BROWNLIE: Principles of Public International Law (4th ed.)…,.

Article 39 of the Vienna Convention on the Law of Treaties (1969) states the general rule regarding the amendment of treaties, as follows:

“A treaty may be amended by agreement between the parties. The rules laid down in Part II apply to such an agreement except in so far as the treaty may otherwise provide.”

Part II of the Vienna Convention on the Law of Treaties (1969) regulates the conclusion and entry into force of treaties, and, by dint of Article 39, it also governs the conclusion and entry into force of treaty amendments. Article 11 prescribes the means of expressing consent to be bound by a treaty and provides that:

“The consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed.”

Article 24 of the Vienna Convention on the Law of Treaties (1969) governs the entry into force of treaties and, in its relevant portions, stipulates that:

“1. A treaty enters into force in such manner and upon such date as it may provide or as the negotiating States may agree.

2. Failing any such provision or agreement, a treaty enters into force as soon as consent to be bound by the treaty has been established for all the negotiating States.”

Taken together, these provisions of the Vienna Convention on the Law of Treaties (1969) illustrate the flexibility inherent in the conclusion and entry into force of treaties as well as amendments thereto.

In particular, Article 11 makes it clear that the consent of States to be bound by a treaty may be expressed by signature, exchange of instruments, ratification or accession, or by any other means if so agreed.

Thus, the States concerned are at liberty to agree on the conclusion of a treaty by means other than the traditionally accepted procedure of signature followed by ratification or accession.

It is therefore perfectly possible for a treaty, or an amendment of the treaty, to be adopted and enter into force for all the adopting States instantly, without further ratification or any other formality, if that is the means of adhesion agreed to by those States: see AUST: Modern Treaty Law and Practice (2000)…,.

Turning to the SADC Treaty itself, Articles 39, 40 and 42 of the Treaty deal, respectively, with signature and ratification of and accession to the Treaty.

Article 41 governs the entry into force of the Treaty as follows:

“This Treaty shall enter into force thirty (30) days after the deposit of the instruments of ratification by two-thirds of the States listed in the Preamble.”

Article 39 makes it abundantly clear that ratification by two-thirds of the signatory States was a pre-requisite for the entry into force of the Treaty itself.

However, amendments to the Treaty are governed by an entirely different procedure, prescribed in Article 36.1, as follows:

“An amendment of this Treaty shall be adopted by a decision of three-quarters of all the Members of the Summit.”

The term “Summit” is defined, in Article 1 of the Treaty, as:

“…, the Summit of the Heads of State or Government of SADC established by Article 9 of this Treaty.”

Article 10 of the Treaty (in its un-amended form) is instructive as to the composition of the Summit and its decision-making process. It provides as follows in its relevant portions:

“1. The Summit shall consist of the Heads of State or Government of all Member States, and shall be the supreme policy-making institution of SADC.

3. The Summit shall adopt legal instruments for the implementation of the provisions of this Treaty…,.

8. Unless otherwise provided in this Treaty, the decisions of the Summit shall be by consensus and shall be binding.”

The combined effect of these provisions is that an amendment to the Treaty is not concluded by way of ratification by Member States but is adopted by a decision of not less than three-quarters of the Summit, comprising the Heads of State or Government of all Member States. Furthermore, the decision of the Summit, to adopt the amendment, is binding on all Member States. The amendment becomes operative immediately thereafter and there is no need for any further ratification by Member States in order to bring the amendment into force and effect.

Turning to the Amendment Agreement itself, the Preamble thereto, in its relevant portions, declares that:

“We, the Heads of State or Government of [all the Member States]…, HAVE AGREED, pursuant to Article 36 of the Treaty, to amend the Treaty as follows:…,.”

Article 32 of the Agreement provides for its entry into force, in conformity with Article 36.1 of the Treaty, as follows:

“This Agreement shall enter into force on the date of its adoption by three-quarters of all Members of the Summit.”

Article 22 of the SADC Treaty, both in its original and amended form, requires the signature and ratification of any Protocol approved by the SADC Summit.

Article 9.1(f) as read with Article 16 provides for the establishment of the SADC Tribunal. Article 16.2 as amended provides that:

“The composition, powers, functions, procedures and other related matters governing the Tribunal shall be prescribed in a Protocol which shall, notwithstanding the provisions of Article 22 of this Treaty, form an integral part of this Treaty, adopted by the Summit.” [amendment underlined]

The meaning and effect of the amending words are clear, to wit, the Protocol of the Tribunal forms an integral part of the Treaty without the need for its ratification by the Member States.

To clarify this position and dispel any doubt on the matter, all the Member States, including Zimbabwe, concluded and signed the Agreement Amending the Protocol on Tribunal on the 3rd of October 2002.

By virtue of Articles 16 and 19 of this Agreement, Articles 35 and 38 of the Protocol of the Tribunal, which required ratification of the Protocol by two-thirds of the Member States, were repealed in toto, thereby obviating the need to ratify the Protocol.

To conclude this aspect of the case, my assessment of and determination on the jurisdictional capacity of the Tribunal is as follows:

On the 14th of August 2001, the Amendment Agreement was signed by 13 out of the 14 Heads of State or Government of the Member States, including Zimbabwe, thereby concluding the process of its adoption and entry into force.

In my view, there can be no doubt whatsoever that the Agreement was duly adopted in terms of Article 36.1 of the Treaty and that it became binding upon all the Member States on the date of its adoption.

It follows that, as from that date, by virtue of Article 16.2 of the Treaty, as amended, the Protocol of the Tribunal constituted an integral part of the Treaty and became binding on all Member States without the need for its further ratification by them. It also follows that the Republic of Zimbabwe thereupon became subject to the jurisdiction of the Tribunal and that the jurisdictional competence of the Tribunal in Mike Campbell (Pvt) Ltd & Others v The Republic of Zimbabwe Case No. SADC(T) 2/2007, which was heard and determined in 2008, cannot now be disputed.

The respondents' position, in this regard, premised on the ex post facto official pronouncements repudiating the Tribunal's jurisdiction, is essentially erroneous and misconceived.

Their position is rendered even more untenable by the conduct of SADC governments, including the Government of Zimbabwe, subsequent to the adoption of the Amendment Agreement, which conduct has been entirely consistent with the provisions of the Treaty as amended by the Agreement. I refer, in particular, to the establishment of the Troika system and the Organ on Politics, Defence and Security Co-operation, in terms of Articles 9 and 9A of the Treaty (as amended by Articles 9 and 10 of the Agreement), and note that Zimbabwe has fully participated, together with all the other Member States, in the Troika system and the business of the newly constituted Organ.

It seems to me legally unsustainable to espouse a major facet of the amended SADC regime and to simultaneously eschew those features of the same regime that are deemed to be politically inexpedient and unpalatable.

Before concluding, I think it necessary to mention one jurisdictional issue that was not canvassed by the parties, either in their affidavits or in argument, relative to the scope of the Tribunal's jurisdiction in terms of the SADC Treaty and its governing Protocol.

In the case before it, the Tribunal relied upon the provisions contained in Articles 4(c) and 16 of the Treaty, as read with Articles 14 and 15 of the Protocol, to conclude that it was duly empowered to adjudicate any dispute concerning human rights, democracy, and the rule of law.

The jurisdiction of the Tribunal encompasses all disputes between States and between natural and legal persons and States relating to the interpretation and application of the Treaty.

Despite this broad formulation, I am not entirely persuaded that the general stricture enunciated in Article 4(c) of the Treaty, which requires SADC and the Member States to act in accordance with the principles, inter alia, of “human rights, democracy, and the rule of law,” suffices to invest the Tribunal with the requisite capacity to entertain and adjudicate alleged violations of human rights which might be committed by Member States against their own nationals.

Be that as it may, this is not an issue that was specifically raised in these proceedings and it would, therefore, be inappropriate for me to deal with this jurisdictional point mero motu at this juncture.

Public Policy

As already stated above, a foreign judgment cannot be recognised and enforced if it is contrary to public policy.

As is succinctly put in JOUBERT (ed.): The Law of South Africa (First Reissue, 1993) Vol. 2 …,:

“…, a foreign judgment will not be recognised or enforced if it is in conflict with an overriding statute, if its terms conflict with public policy, or if it was obtained without observance of the principles of natural justice.”

What constitutes public policy in any given country is a matter that eludes precise definition.

The notion is clearly not immutable and must perforce vary with time, place, and circumstance, in tandem with changing social mores. Antecedent case authorities are obviously highly persuasive but may not always be germane or decisive.

In the instant case, public policy must be considered not only in the closed confines of the domestic sphere but also in the larger regional and international context.

In principle, it would generally be contrary to public policy for any State to violate its international obligations within the domestic realm.

As already stated above, every State party to a treaty in force is required to perform its obligations in good faith, and concomitantly; it cannot invoke its municipal law so as to absolve itself from its obligations at international law.

Apart from being embodied and codified in Articles 26 and 27 of the Vienna Convention on the Law of Treaties (1969), these rules also form part of international customary law: see SHAW: International Law (4th ed. 1997)…,.

As was stated in Route Toute BV & Others v Minister of National Security Responsible for Land, Land Reform and Resettlement & Others HH128-09 …, the position in most Commonwealth jurisdictions is that customary international law is generally regarded as having been internally incorporated insofar as it is not inconsistent with statute law and judicial precedent.

This position was affirmed by the Supreme Court, albeit obiter, in Barker McCormac (Pvt) Ltd v Government of Kenya 1983 (2) ZLR 72 (SC)…, where it was observed that customary international law forms part of the law of Zimbabwe except to the extent that it is in conflict with statute or prior judicial precedent.

Inasmuch as Zimbabwe is bound by the decisions of the SADC Tribunal at international law, by dint of its treaty obligations as well as international custom, it would be inconsistent with the public policy of Zimbabwe not to recognise and enforce any decision of the Tribunal at the municipal level - except insofar as that decision conflicts with statute or prior judicial precedent.

There is a further international dimension to the public policy of Zimbabwe.

By adhering to the SADC Treaty, as well as the Amendment Agreement, and, therefore, by submitting to the jurisdiction of the Tribunal, the Government of Zimbabwe has created an enforceable legitimate expectation, both within and beyond the borders of Zimbabwe, that it would comply with the requirements of the Treaty and abide by the decisions of the Tribunal.

Moreover, in terms of Article 32 of the Protocol of the Tribunal, the Government has bound itself to enforce the decisions of the Tribunal in accordance with domestic procedural law, and has thereby created a further legitimate expectation that it would act accordingly.

These points are illustrated by the decision in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 [(1995) 128 ALR 353] where Australia had ratified the United Nations Convention on the Rights of the Child but had not taken any steps to implement the Convention by statute.

It was held, by the High Court of Australia, that despite the failure to incorporate the Convention in the domestic law of Australia, individuals had a legitimate expectation that the Government would act in accordance with the Convention.

In the instant case, the legitimate expectation that the Government would adhere to the decisions of the Tribunal and take steps to enforce those decisions in the domestic sphere must be regarded as an intrinsic aspect of public policy in Zimbabwe.

On that basis, the recognition and enforcement of the Tribunal's decisions would not be contrary to the public policy of Zimbabwe.

The above propositions must be taken to apply, in principle, to the decisions of the Tribunal generally. In other words, as a rule, public policy dictates that the Tribunal's decisions, made within the bounds of its international jurisdictional competence, be recognised and enforced in Zimbabwe.

However, in my view, the application of this general rule is subject to a consideration of the facts of each individual case and the legal and practical consequences of recognising and enforcing the Tribunal's decision in that particular case in Zimbabwe.

Turning, specifically, to the decision in Mike Campbell (Pvt) Ltd & Others v The Republic of Zimbabwe Case No. SADC(T) 2/2007, the findings and ruling of the Tribunal, insofar as they are relevant in casu, may be summarised as follows:

(i) Fair compensation is payable to the applicants, and must be paid by a fixed date to three (3) of the applicants who have already been evicted, for their lands compulsorily acquired by the Government of Zimbabwe;

(ii) The Government is in breach of its obligations under Articles 4(c) and 6(2) of the SADC Treaty (pertaining to human rights, democracy, and the rule of law, and the principle of non-discrimination);

(iii) Amendment 17 (see below) is in breach of Articles 4(c) and 6(2) of the Treaty;

(iv) The Government is directed to take all necessary measures to protect the possession, occupation, and ownership of the lands of the applicants and to ensure that no action is taken, pursuant to Amendment 17, to evict the applicants from their lands or to interfere with their peaceful residence thereon.

It is common cause that the Government of Zimbabwe embarked on a programme of land reform in the year 2000. The programme was constitutionally recognised in section 16A of the Constitution, which section was introduced by the Constitution of Zimbabwe Amendment (No.16) Act 2000.

Subsequently, the programme was further entrenched when the Legislature enacted section 16B through the Constitution of Zimbabwe Amendment (No.17) Act 2005. The legal effect of section 16B(2)(a) was to compulsorily acquire all agricultural land that was identified in the notices of acquisition itemised in the newly inserted Schedule 7. Consequently, full title in such land vested in the State with effect from the 14th of September 2005. Moreover, by virtue of section 16B(2)(b), no compensation is payable for this land except for any improvements effected thereon before it was acquired.

In terms of section 16B(6), it was envisaged that an Act of Parliament would be framed to make it a criminal offence for any person, without lawful authority, to possess or occupy any land referred to in section 16B. Subsequently, such legislation was duly enacted in the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] which came into operation on the 20th of December 2006.

The legality of the land reform program was considered in Mike Campbell (Pvt) Ltd & Another v Minister of National Security Responsible for Land, Land Reform and Resettlement & Another SC49-07.

In essence, the Supreme Court confirmed the constitutionality of the programme as implemented under section 16B of the Constitution.

Counsel for the respondents submits that the judgment of the SADC Tribunal is in total disharmony with the decision of the Supreme Court in Case No. SC49-07.

Although I do not perceive any direct conflict between the two decisions inasmuch as the Supreme Court was seized with the constitutionality of the programme under domestic law while the Tribunal's judgment centres on the violation of rights and obligations under the SADC Treaty, it must nevertheless be accepted that the indirect consequence of the Tribunal's judgment is to impugn the legality of the program sanctioned by the Supreme Court.

The potential conflict between the two decisions is actualized in the instant case because the effect of registering the Tribunal's judgment in Zimbabwe would be to challenge the decision of the Supreme Court, within its jurisdictional domain, and thereby undermine the authority of that Court in Zimbabwe.

Any such result could surely not be contemplated as conforming with public policy in Zimbabwe and must militate against the registration of the Tribunal's decision by this Court.

In any event, there is a further and more direct basis for declining the registration, and consequent enforcement, of the Tribunal's decision in this country.

As indicated above, the decision directs the Government of Zimbabwe to do several things.

In particular, the Government is ordered to protect the possession, occupation, and ownership of the lands of the applicants. It must also ensure that no action is taken to evict the applicants from their lands or to interfere with their peaceful residence thereon. In addition, it is required to pay fair compensation to the applicants for their lands compulsorily acquired by the Government.

As already indicated, the applicants' lands were acquired by the Government in terms of section 16B of the Constitution without any compensation payable in respect of the land itself.

If the Tribunal's judgment were to be registered by this Court, and subsequently voluntarily complied with or enforced by court orders, the Government would be required to contravene and disregard what Parliament has specifically enacted in section 16B of the Constitution.

This, in my view, simply cannot be countenanced as a matter of law, let alone as an incident of public policy.

Section 3 of the Constitution proclaims what is axiomatic, viz. That:

“This Constitution is the supreme law of Zimbabwe, and, if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void.”

The obvious implications of the supremacy of the Constitution are twofold:

(i) Firstly, to the extent that the common law is invoked to enforce a foreign judgment, the common law must be construed and applied so as to conform with the Constitution, and, any feature of the judgment that conflicts with the Constitution cannot, as a matter of public policy, be recognised or enforced in Zimbabwe.

The notion of public policy cannot be deployed and insinuated under cover of the common law to circumvent or subvert the fundamental law of the land.

(ii) Secondly, I consider it to be patently contrary to the public policy of any country, including Zimbabwe, to require its Government to act in a manner that is manifestly incompatible with what is constitutionally ordained.

Although the Tribunal's decision, strictly regarded, is confined to the 79 applicants before it, its ramifications extend to the former owners of all the agricultural land that has been acquired by the Government since 2000 in terms of section 16B of the Constitution.

In effect, enforcement of the decision vis-a-vis the 79 applicants in particular and compliance with it generally would ultimately necessitate the Government having to reverse all the land acquisitions that have taken place since 2000.

Apart from the political enormity of any such exercise, it would entail the eviction, upheaval and eventual relocation of many if not most of the beneficiaries of the land reform programme.

This programme, despite its administrative and practical shortcomings, is quintessentially a matter of public policy in Zimbabwe, conceived well before the country attained its sovereign independence.

As for the doctrine of legitimate expectation, the applicants before the Tribunal, and others in their position, are absolutely correct in expecting the Government of Zimbabwe to comply with its obligations under the SADC Treaty and to implement the decisions of the Tribunal.

However, I take it that there is an incomparably greater number of Zimbabweans who share the legitimate expectation that the Government will effectively implement the land reform program and fulfil their aspirations thereunder.

Given these countervailing expectations, public policy, as informed by basic utilitarian precept would dictate that the greater public good must prevail.

In the result, having regard to the foregoing considerations, and the overwhelmingly negative impact of the Tribunal's decision on domestic law and agrarian reform in Zimbabwe, and notwithstanding the international obligations of the Government, I am amply satisfied that the registration, and consequent enforcement of that judgment would be fundamentally contrary to the public policy of this country.

Costs

The applicants have not succeeded in the eventual outcome of this case. Nevertheless, it cannot be doubted that the issues raised herein are matters of paramount public importance and that their proper ventilation in these proceedings is of public value and benefit.

I therefore deem it just and equitable that the parties should bear their own legal costs.

The application is accordingly dismissed with no order as to costs.

HH95-10 : TIISO HOLDINGS (PTY) LIMITED vs ZIMBABWE IRON & STEEL COMPANY LIMITED
Ruled By: PATEL J

The plaintiff in this matter has issued summons for payment of the sum of EUR6,640,295=94 together with interest and costs of suit.

The claim arises pursuant to a default judgment of the Regional Court of Frankfurt entered in favour of Kreditanstalt fur Wiederaufbau (KFW) as against the defendant on 25 July 2006.

On 20 May 2008, KFW assigned its rights in the judgment to the plaintiff.

The latter then obtained judgment on the Frankfurt award for an equivalent sum in the High Court of Botswana on 5 June 2009.

The defendant has not satisfied either the Frankfurt or the Botswana judgment.

The plaintiff's claim in this Court is founded on the Frankfurt judgment.

The defendant has filed a Plea in Abatement challenging the enforceability of that judgment on various grounds.

At the hearing of this matter, counsel for the defendant abandoned several of these grounds relating to, inter alia, the impact of the in duplum rule on the interest claim, the non-payment of security for costs by the plaintiff as a peregrine suitor, and the non-enforceability of the Botswana judgment. The last aspect was not pursued in light of the concession by counsel for the plaintiff that its claim was premised solely on the Frankfurt award and not on the Botswana judgment.

Following these concessions, the issues for determination in casu are as follows:

(a) Whether the Deed of Assignment between KFW and the plaintiff is a mere sham depriving the plaintiff of any locus standi to sue on the Deed.

(b) Whether the plaintiff has locus standi to claim any interest beyond the assigned capital amount.

(c) Whether the Frankfurt judgment is contrary to natural justice because of the failure to serve court process properly or at all.

(d) Whether part of the amount claimed by the plaintiff before the Frankfurt Regional Court had prescribed at the time that the claim was instituted.

(e) Whether the Frankfurt award was unenforceable ab initio in the absence of any executable assets belonging to the defendant in Germany.

(f) Whether or not the Frankfurt judgment is final and conclusive for the purposes of its recognition and enforcement in this country.

Recognition and Enforcement of Foreign Judgments

Under the common law, the general requirements for the recognition and enforcement of foreign judgments may be summarised as follows:

(i) The foreign court in question had the requisite international jurisdiction or competence according to our law;

(ii) The judgment concerned was final and has the effect of res judicata according to the law of the forum in which it was pronounced;

(iii) The judgment must not have been obtained by fraudulent means;

(iv) It must not entail the enforcement of a penal or revenue law of the foreign State;

(v) It must not be contrary to public policy in this country; and

(vi) The foreign court must have observed the minimum procedural standards of justice in arriving at the judgment.

See JOUBERT (ed.): The Law of South Africa (First Reissue, 1993) Vol. 2…,.

See also Jones v Krok 1995 (1) SA 677 (A)…,; Purser v Sales 2001 (3) SA 445 (SCA)…,; Gramara (Pvt) Ltd & Another v Government of the Republic of Zimbabwe & Others HH169-09…,.

Validity of Deed of Assignment

On 21 July 2009, KFW instituted proceedings against the Government of Zimbabwe in the High Court of South Africa to enforce an arbitral award rendered on 5 December 2006 by the International Court of Arbitration. This award relates to repayments due under two loan agreements (Nos. F2971 and F3040), including the amount assigned to the plaintiff.

In this regard, the defendant contends that, if the assignment were valid and genuine, KFW qua assignor would have divested itself of any right or interest in the debt assigned. Therefore, inasmuch as the assignor is claiming the amount assigned in other litigation, it must be inferred that the Deed of Assignment between KFW and the plaintiff is a mere sham.

In my view, the defendant's position is clearly misconceived for the following reasons:

In the Deed of Assignment between KFW and the plaintiff, the former has assigned to the latter its rights to the debt claimed as against the defendant. This assignment does not embrace KFW's rights as against the Government of Zimbabwe in its capacity as guarantor under the loan agreements in question. These are separate rights founding a separate cause of action and KFW is undoubtedly entitled to proceed against the Government on its guarantees through separate litigation. This should not entail any double jeopardy to the defendant or unjust enrichment of the plaintiff, as anything recovered on either claim must obviously be set-off against the amount recovered through the other.

It follows that there is nothing untoward in the assignment between KFW and the plaintiff and that the latter is duly vested with the requisite locus standi in judicio to claim the debt assigned.

Claim for Interest

In terms of clause 1.1 of the Deed of Assignment, KFW transferred to the plaintiff, by way of assignment, “the claim for payment of the Assignor under the loan agreements Nos. F2971 and F3040…, up to an amount not exceeding EUR6,640,295.94 against Zimbabwe Iron & Steel Company…, as awarded by the judgment of the District Court in Frankfurt am Main dated July 25, 2006.”

In the instant case, the plaintiff claims the entirety of the Frankfurt award, i.e. the capital sum of EUR6,640,295=94 as well as interest at varying rates on diverse amounts from 30 December 1999.

It is axiomatic that a litigant is only entitled to claim that in which he has a legal right or interest.

The plaintiff herein clearly has no locus standi whatsoever to claim anything more than the assigned amount of EUR6,640,295=94.

Counsel for the plaintiff quite correctly conceded this point and abandoned the plaintiff's claim for interest as set out in the Summons and Declaration.

However, he then sought to substitute a claim for interest at the prescribed rate of 5% per annum, calculated from 25 July 2006, being the date of the Frankfurt ruling.

Counsel for the defendant did not appear to raise any objection to the proposed amendment.

Despite this apparent consensus between counsel, I perceive one particular difficulty with the revised claim for interest.

What is essentially sought in casu is the recognition and enforcement of a foreign judgment, as embodied in a private treaty, in the form of a Deed of Assignment. Any such recognition and enforcement may only be granted on the face of the judgment as translated into the Deed of Assignment.

Accepting the original un-amended claim for interest, as I have already stated, involves granting to the plaintiff more than what it owns. Acceding to the amended claim for interest entails having to modify the express terms of the foreign judgment sought to be recognised and enforced.

In my view, neither of these avenues is available to the plaintiff. It must be confined to the amount awarded by the Frankfurt court as recast and transferred to it through the Deed of Assignment.

For the sake of completeness, I should add that I might have been prepared to accede to a revised claim for interest at the prescribed rate, either from the date of issuance of the summons or from the date of judgment in casu.

However, that is not what was specifically sought before me and I am not at liberty to entertain any such claim mero motu.

Service of Court Process

As I have indicated earlier, a foreign judgment will not be recognised or enforced where it is shown, on a balance of probabilities, that it was obtained contrary to the rules of natural justice: see VAN WINSEN, CILLIERS & LOOTS: The Civil Practice of the Supreme Court of South Africa (4th ed. 1997)…,.; Corona v Zimbabwe Iron & Steel Co. Ltd 1985 (2) SA 423 (TkA)…,.

In particular, although a mere procedural irregularity will not debar recognition, there must have been reasonable notice of the proceedings to the persons affected and adherence to the audi alteram partem principle: see JOUBERT (ed.): The Law of South Africa (First Reissue, 1993) Vol. 2 …,.

The defendant herein avers that it was not properly served with legal process instituting KFW's claim in the Frankfurt court.

However, this averment is clearly belied by the certified translation of the Frankfurt court's ruling (at p.5), wherein it is explicitly stated that the defendant was served with the Complaint on 10 April 2005, and, having been required to answer the Complaint within seven (7) weeks, did not give any indication of its willingness to defend within that time limit.

There is nothing in the papers to counter this position.

It follows that the defendant has failed to establish, on a balance of probabilities, any fundamental violation of the rules of natural justice such as to warrant the non-recognition of the Frankfurt judgment.

Prescription of Claim

According to the defendant, part of the loans founding KFW's claim had prescribed under the law of Zimbabwe by the time that KFW instituted proceedings in the Frankfurt court.

In this regard, the defendant refers the Court to the loan repayment schedules set out in the two loan agreements (Nos. F2971 and F3040) and contends that all the amounts due for repayment on or before 31 September 2001 had prescribed at the relevant time. The defendant further contends that the judgment of the Frankfurt court itself, delivered on 25 July 2006, had prescribed within three (3) years and that the plaintiff's action in this Court, filed on 15 October 2009, was instituted out of time.

I must confess that I find it somewhat difficult to comprehend the defendant's contentions on prescription.

First and foremost, the defendant is unable to state, with any certainty, when the proceedings in the Frankfurt court were instituted, and, therefore, what the cut-off date should be for the purposes of prescription before that court.

Secondly, even if the cut-off date argued for by the defendant is accepted, I note that the repayments due on or before that date constitute only about 20% of all the repayments owing to KFW.

Thirdly, the schedules referred to deal only with capital repayments and there is no indication as to the quantum of interest payable on the loans and the due dates for payment of such interest.

Finally, the ruling of the Frankfurt court (at p.4 of the certified translation) refers to a letter of demand for all amounts owed by the defendant, exceeding Euro 50 million, while the amount actually claimed by KFW in the Frankfurt court is no more than Euro 6.6 million (together with interest).

On these facts, it seems to me virtually impossible to ascertain precisely what amounts were owed under the loan agreements and when such amounts became due and payable. Therefore, without further documentary and oral evidence being lead, any attempt, at this stage, to determine what has prescribed would be an exercise in utter futility.

In any event, quite apart from the aforementioned evidential difficulties, there is considerable merit in the plaintiff's submission that prescription is a substantive matter, and, as such, falls to be determined by the lex causae and not the lex fori: see Laurens N.O. v Von Hohne 1993 (2) SA 104 (W)…,.

Under the loan agreements in casu (Article 10.2 of Loan No. F2971 and Article 9.2 of Loan No. F3040) the loans are governed by the law of the Federal Republic of Germany.

It is that law that is the lex causae and it is that law that determines the question of prescription.

In this regard, the defendant has not adduced any evidence as to the German law of prescription.

In any event, it is not competent for this Court to review the correctness or otherwise of the Frankfurt court's determination, if any, as to whether or not KFW's claim had prescribed under the law of Germany.

In proceedings for the recognition of a foreign judgment, it would be quite improper to pronounce upon the merits of any issue of fact or law tried by the foreign court and to review or set aside its findings: see JOUBERT (ed.): The Law of South Africa (First Reissue, 1993) Vol. 2…,.

As regards the prescription of the Frankfurt judgment itself, I concur with counsel for the plaintiff that the effect of that judgment was a novatio necessaria of the original debt sued upon. However, contrary to counsel's submission, such novatio does not necessarily entail the creation of a new obligation. Nevertheless, the clear effect of the judgment is to provide a new right of action enforceable as such: see Commercial Bank of Zimbabwe Ltd v MM Builders & Suppliers (Pvt) Ltd & Others 1996 (2) ZLR 420 (H)…,.

If one applies the prescription law of Zimbabwe to this new right, i.e. section 15(a)(ii) of the Prescription Act [Chapter 8:11], it is evident that a judgment debt only prescribes after 30 years.

In this context, given the all-embracing definition of “debt” in section 2, there is nothing in the Prescription Act to suggest that the prescription period of 30 years applies only to local judgments and does not extend to foreign judgments. Thus, even as regards the Frankfurt judgment, it is abundantly clear that the plea of prescription does not avail the defendant.

Enforceability without Executable Assets

Under the loan agreements in question (Article 10.3 of Loan No. F2971 and Article 9.3 of Loan No. F3040) the parties expressly agreed that the place of jurisdiction for all litigation in connection with the loans would be Frankfurt/Main in the Federal Republic of Germany.

It is therefore perfectly clear that the defendant specifically submitted to the jurisdiction of the Frankfurt court.

The defendant avers that the Frankfurt judgment could not have been enforced by execution in Germany as the defendant had no executable assets in that country, at that time, to satisfy the judgment in whole or in part.

In this regard, counsel for the defendant contends that the mere submission of the defendant to the jurisdiction of the Frankfurt court is not enough to render its judgment effective.

Counsel for the plaintiff counters that submission to the Frankfurt court is sufficient and that the defendant should have raised the effectiveness of its ruling before that court and not in the present proceedings.

The principle of effectiveness that underlies the law of jurisdiction, in its absolute sense, is that the court will only have jurisdiction if it controls the person or property of the defendant, as the mere consent or submission of the defendant to the jurisdiction of the court affords no absolute guarantee that the court's judgment will be effective: see FORSYTH: Private International Law (4th ed.)…,.

However, as is further explained by the learned author, at pp.215-216:

“Today, the doctrine of effectiveness is artificial and conceptual rather than realistic.

And, indeed, even those cases that would most severely restrict submission do not reject it altogether. Moreover, submission is widely recognised in legal systems across the world as a ground of international competence justifying the enforcement of the judgment of a foreign court to which the defendant has submitted. Thus, on the whole, a judgment based on submission will be effective. It is submitted that effectiveness in this slightly attenuated sense should suffice to justify the exercise of jurisdiction on the grounds of submission. The fact is that most other legal systems…, give wide recognition to and encourage submission as a ground of jurisdiction…,. It is to the benefit of international commerce that this should be so….,. As economic development in Southern and Central Africa proceeds, there is no reason, other than archaic restrictions on the exercise of jurisdiction, why the local courts should not develop an international role akin to that of the Commercial Court in London.”

Similar sentiments predicated on policy grounds were expressed in Richman v Ben-Tovim 2007 (2) SA 283 (SCA)…, where ZULMAN JA observed that:

“There are compelling reasons why…, in this modern age, traditional grounds of international competence should be extended, within reason, to cater for itinerant international businessmen. In addition, it is now well established that the exigencies of international trade and commerce require 'that final foreign judgments be recognised as far as is reasonably possible in our courts, and that effect be given thereto'.”

As I have stated earlier, the enforcement of a foreign judgment requires that the foreign court had jurisdiction, in the international sense, according to the principles of our law on the jurisdiction of foreign courts: see JOUBERT (ed.): The Law of South Africa (First Reissue, 1993) Vol. 2…,; SCHULZE: International Jurisdiction in Claims Sounding in Money 2008 20 SA MERC. LJ…,.

Thus, the mere fact that the foreign court may have had jurisdiction under its own laws is not conclusive: see Reiss Engineering Co Ltd v Insamcor (Pty) Ltd 1983 (1) SA 1033 (W)…,.

The rules for assessing the international jurisdiction of a foreign court are expounded by POLLAK: The South African Law of Jurisdiction (1937)…,. The overall position is summarised…, as follows:

A foreign court has jurisdiction to entertain an action for a judgment sounding in money against a natural person if, at the time of the commencement of the action, the defendant is physically present in the State to which the court belongs or is domiciled or resident within that State or has submitted to the jurisdiction of that court.

According to POLLAK: The South African Law of Jurisdiction (1937) there are no other grounds for jurisdiction.

This summation was cited with approval in Reiss Engineering Co Ltd v Insamcor (Pty) Ltd 1983 (1) SA 1033 (W)…, and followed in Richman v Ben-Tovim 2007 (2) SA 283 (SCA)…,.

With specific reference to submission as a basis of jurisdiction, the position is reiterated by PISTORIUS: Pollak on Jurisdiction (2nd ed. 1993)…,:

“Submission has been accepted, in our law, as an acceptable basis for international competence.

As in the case of local jurisdiction, submission may be by way of agreement or by a defendant acquiescing by his conduct in such jurisdiction after litigation against him has commenced. In the case of agreement, this may be pursuant to a contract between the parties which specifically provides for submission in the event of disputes or by an express or tacit submission after litigation. Submission by conduct may be difficult to prove, and…., the conduct must be of such a nature that it is consistent only with acquiescence.”

Again, in relation to claims sounding in money, FORSYTH: Private International Law (4th ed.)…, encapsulates the modern law as follows:

“It is widely recognised, by both writers and the decided cases, that submission by the defendant to the jurisdiction of the foreign court grants to that court international competence even if it would not otherwise enjoy that competence.”

As regards submission by agreement, the learned author…, states that:

“In accordance with the general principles of the law of contract, parties may, either expressly or impliedly, enter into binding agreements to submit their dispute to a particular court which might otherwise lack jurisdiction…,; express submission where the parties agree to submit in the ipsissma verba of their contract; provided such submission is valid under its proper law, such an agreement is undoubtedly effective.”

Having regard to the foregoing cases and commentaries, I conclude that a defendant's express submission to the jurisdiction of a foreign court suffices, ipso facto, and without any further jurisdictional ground, to endow that court with the requisite international competence, enabling and allowing the recognition and enforcement of its judgments under the common law.

I am fortified in that conclusion by the policy considerations that I have cited earlier, which are obviously germane to any analysis of international competence according to the principles of our law governing the jurisdiction of foreign courts.

In that context, the tenets of international comity, informed by the inexorable trans-nationalisation of trade and commerce, dictate that our courts should be astute to extend, rather than constrict, the scope of international jurisdiction and competence as regards claims sounding in money.

On that basis, there can be no objection to a more liberal approach that recognises the enforceability of a foreign judgment, founded on the submission of the defendant, whether it be a natural person or an artificial entity, to the jurisdiction of the foreign court in question.

I accordingly take the view, in keeping with principle as well as policy, that the explicit contractual submission of the defendant in casu, to the jurisdiction of the Frankfurt court, suffices for the purpose of recognising its judgment. This is so regardless of the fact that the defendant may or may not have had any executable assets in Germany at the time of the commencement of the plaintiff's action in Frankfurt.

Finality and Conclusiveness of Frankfurt Judgment

The defendant avers that the judgment that the plaintiff seeks to enforce is ex facie not one that is final and conclusive, and, as such, it cannot be enforced in casu.

In this respect, it is specifically pleaded by the plaintiff, in paragraph 4 of its Declaration, that the Frankfurt judgment “is final in its terms and remains valid and effective.” Consequently, it is submitted, by counsel for the plaintiff, that the defendant cannot challenge the validity and finality of the judgment by way of special plea and can only raise that issue on the merits.

It is further argued, by counsel for the plaintiff, that the finality or otherwise of the judgment under German law is a matter for the defendant to establish. This contention is disputed by counsel for the defendant who submits that the burden in this regard falls squarely on the plaintiff.

The requirement of finality and the burden of proof in that regard are lucidly adumbrated by JOUBERT (ed.): The Law of South Africa (First Reissue, 1993) Vol. 2…,:

“A foreign judgment will not be enforced unless it is a final judgment and has the effect of res judicata according to the law of the forum that pronounced the judgment. The fact that it is subject to appeal does not affect its finality for the purposes of recognition, but, if an appeal is actually pending, the South African court will probably exercise its discretion not to recognise the judgment. Finality must be alleged and proved by the party seeking to enforce the judgment.”

According to FORSYTH: Private International Law (4th ed.)…,:

“A provisional judgment of an internationally competent foreign court will not be enforced or recognised.

After all, it would be undesirable if the foreign court's judgment were enforced, and, thereafter, the foreign judgment was set aside or altered by the court which made it in the first place. Consequently, any foreign judgment must be final and conclusive before it will be recognised or enforced.

Our courts have largely accepted the English principles in this regard; thus, what is required is that the judgment was un-alterable by the court which pronounced it. But it need not be absolutely unalterable. Indeed, the fact that a particular judgment is appealable or has been appealed against in the legal system from which it comes does not affect the finality of the judgment. Although the original judgment may be upset on appeal it is not then altered by the court which made it. It appears, further, however, that where the rendering court has suspended its judgment pending an appeal, such a judgment will not be enforced locally, and, moreover, where an appeal is pending although the effect of the judgment has not been suspended the court has a discretion not to enforce the judgment…,.

The onus of establishing that a foreign judgment is final rests, naturally, on the party seeking to enforce it; but, once this is shown the 'defendant must place before the Court the facts relating to the impending appeal, and such other relevant facts as may persuade the Court to exercise its discretion in granting a stay of proceedings.' [per Jones v Krog 1995 (1) SA 677 (A) at 692].”

With reference to default judgments, the learned author opines as follows…,:

“The position in regard to default judgments, which may or may not be rescinded by the court which rendered them, is less clear.

Under German law, for example, a defendant against whom a default judgment has been given has the privilege of Einspruch available (if exercised within two weeks of the judgment being served on him) in terms of which the case against him is automatically re-opened without the defendant needing to excuse the default. Such a judgment is certainly not final while the defendant can exercise this privilege; but, thereafter, it must be considered final.

Other legal systems, however, do not build time limits into their rules.

In our own law, for example, it appears that, notwithstanding certain cases to the contrary, a High Court judgment can be rescinded at any time on grounds that would normally entitle defendant to restitutio in integrum or 'some other just cause'. Such judgments are, in theory, not final for they may still be altered by the court which made them.

…, there is a strong case for creating an exception to the 'final and conclusive' rule in the case of default judgments. If this is not done, default judgments, even when granted by an internationally competent court, will often be worthless outside the territory of that court. Moreover, in the absence of a time limit after which the default judgment cannot be set aside by the court which pronounced it, only an application by the defendant to have the judgment set aside can, when dismissed, transmute the judgment into an internationally enforceable one…,.

The courts, in several jurisdictions, have been creating such an exception (subject to safeguards) and the local courts should do so too.”

As regards proof of the finality of a foreign judgment, VAN WINSEN, CILLIERS & LOOTS: The Civil Practice of the Supreme Court of South Africa (4th ed. 1997)…, enunciate the position concisely:

“The foreign judgment must, however, be a final and conclusive one, and the finality and conclusiveness of the judgment should appear ex facie the record. It should be alleged, in the summons, that the judgment is a final one, and the law and facts which make it final should be stated if, on the face of it, the judgment appears to be provisional.”

With reference to the requisite formalities, the learned authors continue, at pp.1000-1001:

“It is essential that all the papers should be in order before a foreign judgment will be enforced. The plaintiff must therefore have, before the court, a properly authenticated copy of the judgment upon which provisional sentence is sought, and, if it does not appear from that, that the judgment is a final one, the plaintiff should annex a certificate from the competent authority in the foreign tribunal to show that the judgment is or has become final. If the judgment is in a foreign language, a due and proper translation of it must be annexed to the summons. The documents must show that the translation was made either by a sworn translator of the court or by a person otherwise qualified to translate the judgment.”

In the instant matter, the plaintiff has annexed to its Declaration certified copies of the original judgment and what purports to be a certified translation of that judgment. However, it is not clear that the copy of the original judgment has been properly authenticated. Moreover, there is no indication on the papers that that the translation was made by a sworn translator of the Frankfurt court or by a person otherwise qualified to translate the judgment.

Be that as it may, these are technical issues that may well be addressed and rectified should the matter proceed to trial.

What is more significant, at the present stage of the proceedings, is the content of the record as it stands and what appears on the face of the Frankfurt judgment itself.

It is not in dispute that the judgment was granted by default and that the defendant has neither applied for its rescission nor appealed against it. In that regard, nothing has been placed before this Court as to whether or not the period for appealing against the judgment or for seeking its rescission has expired: FORSYTH: Private International Law (4th ed.)…, and, without such clarification, I am not at liberty to assume the correct position under German law at the present time.

In any event, quite apart from the possibility that the judgment may be susceptible to appeal or rescission (which seems unlikely given the passage of time, since it was delivered in July 2006) what is more crucial, for present purposes, are the actual words employed in the judgment itself.

At page 2 of the certified translation, it is decreed that: “The judgment is provisionally enforceable,” and, at page 6 of the judgment, it is declared that: “The decision about preliminary enforceability is based on ss 708 No.2 ZPO.”

What then emerges ex facie the Frankfurt judgment is that it is provisional or preliminary and only provisionally enforceable.

The word “preliminary” normally denotes something that is initial, first, opening or introductory; the term “provisional”, in ordinary parlance, means temporary, interim, conditional or impermanent. In legal jargon “provisional” is similarly defined in Black's Law Dictionary (6th ed.) as:

“Temporary, preliminary, acceptable in the existing situation but subject to change or nullification.”

Having regard to all of these connotations, it seems unequivocally clear, from the record, that the Frankfurt judgment is purely provisional in nature, and, therefore, subject to change or nullification.

In this regard, the plaintiff has failed to discharge the onus upon it to demonstrate that the ruling is final and conclusive or to explain the esoteric reference to “ss 708 No.2 ZPO” upon which it appears to have been based.

The plaintiff has merely proffered the bald assertion in its Declaration to the effect that the judgment is final.

It has not furnished any certificate from a competent authority in the Frankfurt court to show that the judgment is or has become final. Nor has it adduced anything to counter the defendant's special plea, explaining the relevant law of Germany, by way of written law or judicial decisions, as would conform with the requirements of section 25 of the Civil Evidence Act [Chapter 8:01].

In the premises, it must be held that the judgment in casu is not final and conclusive for the purposes of its recognition and enforcement in this jurisdiction, and that, for that reason, this Court must decline to recognise and enforce the judgment.

Disposition

In the final analysis, many of the issues for determination in casu must be answered in favour of the plaintiff, save for the second question, pertaining to its claim for interest, and the last question, relating to the finality and conclusiveness of the judgment that it seeks to enforce.

This last issue is critical to the plaintiff's case and it is one that the plaintiff has clearly failed to establish on the record.

Accordingly, the defendant's Plea in Abatement, challenging the enforceability of the Frankfurt judgment, succeeds on that single ground and must therefore be upheld.

In the result, the plaintiff's claim is dismissed with costs.

CC04-18 : GABRIEL SHUMBA and SIBONILE MFUMISI and DARLINGTON NYAMBIYA vs MINISTER OF JUSTICE and CHAIRPERSON, ZIMBABWE ELECTORAL COMMISSION and ZIMBABWE ELECTORAL COMMISSION and OTHERS
Ruled By: GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC, BHUNU JCC and UCHENA JCC

This is an application in terms of section 85(1)(a) of the Constitution and the background to the matter is as follows:-

The applicants are all citizens of, but are not resident in, Zimbabwe. They give different reasons for their absence, with the first applicant citing political reasons. The second applicant cites economic reasons, while the third applicant alleges his absence is premised on economic and political reasons.

The applicants state that they wish to participate in the country's harmonized general elections due later this year, 2018, but are precluded from doing so by certain sections of the relevant law. They accordingly seek the following relief:-

“IT IS DECLARED THAT:

1. The failure to afford voting facilities to the applicants and similarly placed Zimbabweans based abroad be and is hereby declared unconstitutional in that it violates applicants' rights as enshrined in section 67 and 56 of the Constitution.

ACCORDINGLY, IT IS ORDERED THAT:

1. Section 23 of the Electoral Act [Chapter 2:13] be and is hereby declared constitutionally invalid as far as it excludes citizens not resident in Zimbabwe from registering as voters in contravention of section 67(3) as read with paragraph 2 of the 4th Schedule to the Constitution of Zimbabwe.

2. Section 72 of the Electoral Act [Chapter 2:13] is hereby declared constitutionally invalid as far as it excludes citizens of Zimbabwe who are not in Government service from exercising their right to vote in contravention of sections 56(1), 56(3), 56(4) and 67(3) of the Constitution of Zimbabwe.

3. The respondents are hereby ordered to put in place all appropriate measures to enable the applicants and any other Zimbabweans based abroad to participate in the 2018 Presidential, Parliamentary, and Local Authority elections as voters.”

As is evident from the draft relief sought, that, it is the applicants' case that sections 23 and 72 of the Electoral Act [Chapter 2:13] infringe their right to vote as enshrined in section 67(3) as read with paragraph 1(2) of the 4th Schedule to the Constitution.

It is also their argument that section 72 of the Electoral Act [Chapter 2:13] violates their rights in terms of section 56(1), (3) and (4) of the Constitution.

Section 67 of the Constitution deals with 'Political Rights' and its subsection (3) confers the right to vote on every Zimbabwean citizen of 18 years and above. Section 56 and the sub-sections cited relate to equality and non-discrimination.

The applicants argue that, in terms of section 67(3) of the Constitution, every citizen over the age of eighteen (18) years is entitled to vote regardless of where they reside or resident. In their opinion, the residency requirements set out in section 23(3) of the Electoral Act (“the Act”) should not, and cannot, negate the right of any Zimbabwean above the age of 18 years to vote.

Because the Electoral Act does not facilitate the registration and voting of Zimbabweans based abroad, the applicants contend that the result is a negation of section 67(3) as read with paragraph 1(2) of the 4th Schedule to the Constitution.

They further aver that sub-section 23(3) and section 72 of the Electoral Act are discriminatory for the reason that they restrict the right to vote only to persons physically in Zimbabwe, to the prejudice of absent voters. They contend that the benefit extended to a certain class of people, under section 72 of the Electoral Act, unjustly discriminates against them because they are not in Government service nor are they spouses of such civil servants.

The applicants, in addition, allege that denial of the diaspora vote is contrary to international law, that is, Article 13 of the African Charter on Human and Peoples' Rights, sections 4.1.1, 4.1.8 and 5.1.8 of the SADC Principles and Guidelines Governing Democratic Elections, and Article 25 of the International Covenant on Civil and Political Rights.

Counsel for the applicants further argues that the right to vote, given under section 67(3) of the Constitution, does not depend on anything other than citizenship and age.

He also relied on section 155(1)(c) of the Constitution which he described as an 'executionary provision'. The contention in this regard is that all voters are equal, regardless of where a person is residing for a particular period.

Counsel for the applicants further contends that the right accorded in the Constitution cannot be attenuated by legislation, and that, in terms of section 35(3)(a) of the Constitution, the State is obliged to 'follow' its citizens wherever they are; this obligation not being informed by the location of the citizen but by the citizenship of the person.

In terms of section 67(3) of the Constitution as read with the 4th Schedule to the Constitution, it is further argued, everyone not disqualified from voting is entitled to vote. Citizens in the diaspora are not disqualified from voting. The 4th Schedule is different from its equivalent under the erstwhile Constitution and does not detract from sections 67, 35 and 155 of the Constitution.

He postulates that the according of a right to vote can only have meaning if it is given to a person who would otherwise not have voted. Once a citizen remains outside the constituency for the relevant period, there is no provision for the equitable use of discretion by the Zimbabwe Electoral Commission. Reference was made to the fact that South Africa, Mozambique, Senegal, Rwanda, Ghana, Kenya, Botswana, Namibia, India, United States of America, and Australia all grant their citizens in the diaspora the right to vote.

Finally, counsel for the applicants argues that there was no need to amend the Constitution but that the Government needed to amend its attitude.

The second (Chairperson, Zimbabwe Electoral Commission) and third (Zimbabwe Electoral Commission) respondents filed papers indicating that they would abide by the order of the Court.

The first (the Minister of Justice, Legal, and Parliamentary Affairs), fourth (the Minister of Foreign Affairs), fifth (the Minister of Finance and Economic Development) and sixth (the Attorney General of Zimbabwe) respondents opposed the application and did so, generally, on the basis that anyone who wishes to exercise their right to vote can bring themselves into the confines of the law as currently worded and exercise the right to vote.

They also allege that the impugned provisions are not restrictive.

As regards section 72 of the Electoral Act, the first, fourth, fifth and sixth respondents allege that it is a justified differentiation between Government employees outside the country and those pursuing their own interests abroad because Government employees are required to be outside Zimbabwe on the polling day. They also allege that there is no obligation on the State to establish polling stations outside Zimbabwe.

The first, fourth, fifth and sixth respondents also contend that the impugned sections are administrative in nature and are consistent with the Constitution.

Counsel for the first, fourth, fifth and sixth respondents argues, in addition, that the arguments by counsel for the applicants have already been dealt with in Bukaibenyu v The Chairman of the Zimbabwe Electoral Commission and Others CC12-17.

Her position is that the provisions under the erstwhile Constitution, and the provisions in the current Constitution, are similar. Section 67(3) is subject to the rest of the Constitution.

A person has the right to be retained only on the 'most appropriate roll'.

The 4th Schedule provides for an additional requirement of residency. The Constitution does not provide for external constituencies.

There is a presumption of coherence of the Constitution and the provisions of the Constitution should not be read in isolation.

Further, that the residency requirements have constitutional 'parentage' and are not unreasonable requirements.

A person can only lose their right to vote in terms of section 23(3) as read with section 33 of the Electoral Act [Chapter 2:13].

Section 33 of the Electoral Act provides for the procedural steps to be taken before a person is dis-entitled to vote.

In order to be entitled to vote in a constituency, a person has to have an interest in the relevant constituency and this is only safeguarded by the residency requirement.

Counsel for the first, fourth, fifth and sixth respondents contends that section 72 of the Electoral Act is justified for the reason that it relates to persons re-assigned by the Government. Persons abroad, on Government service, cannot vote in the hosting nations but applicants may be able to vote in their countries of residence depending on their circumstances.

Notwithstanding that there are other countries which permit the diaspora vote, it is her contention that Zimbabwe has to be guided by the wording of its Constitution, which clearly did not anticipate the diaspora vote. Thus, if the applicants feel strongly about the diaspora vote, they should petition Parliament to amend the Constitution....,.

In resolving this matter, it is apparent that four questions arise for determination, that is:-

1. Whether the Constitution of Zimbabwe, directly or indirectly, allows for the 'diaspora vote.'

2. Whether section 23 of the Electoral Act [Chapter 2:13] violates section 67(3) of the Constitution.

3. Whether section 72 of the Electoral Act [Chapter 2:13] violates subsections 56(1), (3) and (4) of the Constitution.

4. Whether international conventions and electoral laws have any influence in the interpretation of our electoral laws as currently phrased.

Whether the Constitution of Zimbabwe, directly or indirectly, allows for the 'diaspora vote'

The papers before the court point to one major point of dissent between the parties, and that is whether or not the Constitution, in the way it is worded in relevant parts, or in the import of such wording, envisages or anticipates a situation where Zimbabweans based abroad, by dint of their own volition, can vote during the country's harmonized general elections.

In other words, does the Constitution allow or not allow the so-called diaspora vote?

The applicants' view is in the affirmative while the respondents firmly subscribe to the opposite view.

My view is that this is the issue that must be determined first before one can consider the question of whether or not the impugned provisions of the Electoral Act violate the relevant provisions of the Constitution. This is particularly so where it is alleged, as in casu, that certain statutory provisions violate a particular constitutional provision, and where the meaning of such provision is the subject of dispute between the parties.

Section 67 of the Constitution deals with 'Political Rights' and in its sub-section (3) reads as follows:

“67 Political rights

(1)…,.

(2)…,.

(3) Subject to this Constitution, every Zimbabwean citizen who is of or over eighteen years of age has the right —

(a) To vote in all elections and referendums to which this Constitution or any other law applies, and to do so in secret; and

(b) To stand for election for public office, and, if elected, to hold such office.”…,.

Paragraph 1(2) of the 4th Schedule to the Constitution provides as follows:

“(2) The Electoral Law may prescribe additional residential requirements to ensure that voters are registered on the most appropriate voters roll, but, any such requirements must be consistent with this Constitution, in particular with section 67.”

As is apparent from the above, sub-section (3) confers the right to vote in all elections, on 'every Zimbabwean who is of or over eighteen years of age'. This right, however, is not absolute, since the same provision is prefixed with the words 'subject to this Constitution', whose effect is to limit this very right.

The clear meaning of this provision is that it must not be read in isolation but must 'subject' itself to other provisions of the Constitution that have a bearing, no matter how tangential, on the issue of electoral voting. The provision must, in other words, cohere or be consonant with all such other constitutional provisions.

Of these other provisions, the applicants specifically mention paragraph 1(2) of the 4th Schedule to the Constitution.

This provision, as already indicated, provides leeway for 'the Electoral Law' to prescribe additional residential requirements to ensure that voters are registered on the most appropriate voters roll. However, any such requirements must be consistent with the Constitution, in particular with section 67 (it hardly needs mention that whether or not such residential requirements violate section 67 of the Constitution will depend on how that section itself is interpreted).

Paragraph (2) follows directly after paragraph 1(1) and must, logically, not be read independently from it, as the appellants seek to do. Doing so is to interpret paragraph 1(2) out of context (this would run counter to basic principles of statutory interpretation, which require that all relevant provisions in a statute, that deal with the subject for interpretation, must be considered together (see Tsvangirai v Mugabe & Others CC24-17)), with the possible result of giving it an unintended, if not erroneous, import.

The whole of paragraph 1 therefore reads as follows:

“1. Qualifications for registration as voter

(1) Subject to subparagraph (2) and to paragraph 2, a person is qualified to be registered as a voter on the voters roll of a constituency if he or she —

(a) Is of or over the age of eighteen years; and

(b) Is a Zimbabwean citizen.

(2) The Electoral Law may prescribe additional residential requirements to ensure that voters are registered on the most appropriate voters roll, but, any such requirements must be consistent with this Constitution, in particular with section 67.”…,.

If this whole provision is read together with section 67(3) of the Constitution, as it should since it addresses the same issue, the simple meaning is that while paragraph 1(1) of the 4th Schedule to the Constitution gives the right to vote to every Zimbabwean citizen of or over 18 years of age, that right alone is not enough. It merely qualifies the citizen for registration as a voter, something that he is then required to do. The registration must be effected on a voter's roll, and that voters' roll must relate or 'belong' to a given constituency.

However, by virtue of paragraph 1(2) of the 4th Schedule to the Constitution additional residential qualifications may be prescribed, and these would, as it were, complete the package of voting requirements to be met before a citizen is allowed to vote.

This point was, in my view, correctly made in Bukaibenyu v The Chairman of the Zimbabwe Electoral Commission and Others CC12-17 where MALABA DCJ…, had this to say in relation to Zimbabwe's electoral system:

“Under the Zimbabwean electoral system, a voter votes not only as a citizen of this country but also to protect his or her rights and interests as a resident of the constituency in which he or she is registered.”

In that judgment, the Court dealt with a challenge to the restriction of postal voting to Government officials and the residency requirements in the Electoral Act, albeit under the old Constitution. The issues are, however, the same as the ones in this case. The applicants have not challenged the correctness of this judgement nor established that it was distinguishable.

It should be noted that paragraph 1(1) is made 'subject to' paragraph 1(2). The import of this prefix, in my view, is simply to restate the fact that the requirements for eligibility to vote as outlined in paragraph 1(1) must take on board any additional residential requirements that may be prescribed in terms of paragraph 1(2).

The caution contained in paragraph 1(2) against these additional requirements violating the political rights guaranteed in section 67, especially subsection (3) thereof, is not to be interpreted narrowly, since this sub-section is made 'subject to' other provisions of the Constitution that deal with voting rights.

The clearest suggestion as to what 'constituency' for purposes of voting in general elections refers to, is given in section 160(1) of the Constitution.

The section falls under the heading 'DECLARATION OF ELECTORAL BOUNDARIES', and the subtitle 'Number of constituencies and wards'. It reads as follows:-

“(1) For the purpose of electing Members of Parliament, the Zimbabwe Electoral Commission must divide Zimbabwe into 210 constituencies.”…,.

It is not in dispute that Harmonised General Elections are held in order for the electorate to vote, among others, for Members of Parliament, a President, and Local Government representatives of their choice.

There can, in my view, therefore, be no doubt that the reference to 'constituency' in paragraph 1(1) of the 4th Schedule relates to any one of the 210 constituencies which the Zimbabwe Electoral Commission (ZEC) is constitutionally mandated to divide Zimbabwe into.

To facilitate the registration of a voter on the most appropriate voters' roll of a constituency, paragraph 1(2) of the 4th Schedule gives the discretion to prescribe additional residential requirements to the Electoral Law.

Clearly, in my view, the 'most appropriate voters roll' envisaged in this paragraph must be related to, and not exist outside, the specific constituency applicable to the voter in question.

The respondents argue, effectively, that one measure of this appropriateness is the voter's physical or 'deemed' residency in the constituency concerned.

The 'deemed' residency applies, with respect, to postal votes provided for under section 72 of the Electoral Act…,. Such residency must be related to a constituency and the postal voter must be registered on its voters' roll before he can vote from wherever, in or outside Zimbabwe, he might be located.

The constituency-based residential requirements for voting, I find, extend to the election of the President and Vice Presidents.

Counsel for the applicants argued that if the residential requirements are constitutional, they would only relate to Parliamentary and Local Government elections. He contended that, with regard to Presidential elections, the residential requirements are of no consequence because there is only one constituency in Presidential elections.

I am not persuaded by this argument in view of the provisions of section 92 of the Constitution which reads as follows:-

“92 Election of President and Vice Presidents

(1) The election of a President and two Vice-Presidents must take place within the period specified in section 158.

(2) Every candidate for election as President must nominate two persons to stand for election jointly with him or her as Vice-Presidents, and must designate one of those persons as his or her candidate for first Vice-President and the other as his or her candidate for second Vice-President.

(3) The President and the Vice-Presidents are directly elected jointly by registered voters throughout Zimbabwe, and the procedure for their election is as prescribed in the Electoral Law.

(4) The qualifications for registration as a voter and for voting at an election of a President and Vice-Presidents are set out in the 4th Schedule.

(5) The election of a President and Vice-Presidents must take place concurrently with every general election of Members of Parliament, provincial councils and local authorities.”…,.

In terms of section 92(4), the qualifications for registration as a voter, and voting, are prescribed in the 4th Schedule to the Constitution.

This is the very same Schedule that speaks to a constituency-based election and directs one to section 23 of the Electoral Act.

One significant provision of section 92 is paragraph (3) which makes reference to registered voters 'throughout Zimbabwe'.

This phrase delineates geographical parameters for the Presidential election, and, since the election is held concurrently with the rest of the harmonised elections, it (the phrase) is in perfect harmony with section 160 of the Constitution which relates to electoral boundaries.

The clear meaning is that the Presidential election is to be conducted in Zimbabwe, and, in order for a person to participate in it, he has to be in Zimbabwe, or deemed so, and, also, must be registered as a voter in terms of the 4th Schedule to the Constitution.

When the foregoing is considered, it becomes evident that the contention made for the applicants, that the right to vote given under section 67(3) of the Constitution, does not depend on anything other than citizenship and age, is not legally sustainable.

While it is, in some cases, correct, as contended for the applicants, that a right accorded in the Constitution cannot be attenuated by legislation; in casu, it is the Constitution itself which appears to attenuate, in a later provision, a right that it accords in an earlier one.

Further, the argument by counsel for the applicants that in terms of section 35(3) of the Constitution, the State is 'obliged' to follow its citizens wherever they are in the world to enable them to vote, and that its obligation to do so is not informed by the location of the citizen but his being a citizen, finds no support in the Constitution.

It is important to note that while a right granted by the Constitution may not always be limited through legislation; legislation itself cannot confer rights which the Constitution, in related provisions, specifically excludes.

Other provisions of the Constitution touch directly or indirectly on the issue of elections and the right of Zimbabwean citizens to participate in them.

Section 124 relates to the composition of the National Assembly and mentions 210 members elected from the same number of constituencies 'into which Zimbabwe is divided'.

Section 161 refers to delineation of electoral boundaries 'into which Zimbabwe is divided'.

With regards to section 155 of the Constitution, the applicants argue that the provision entitles them to cast their votes from abroad. The section provides as follows:

“155 Principles of electoral system

(1) Elections, which must be held regularly, and referendums, to which this Constitution applies must be —

(a) Peaceful, free, and fair;

(b) Conducted by secret ballot;

(c) Based on universal adult suffrage and equality of votes; and

(d) Free from violence and other electoral malpractices.

(2) The State must take all appropriate measures, including legislative measures, to ensure that effect is given to the principles set out in subsection (1), and, in particular, must —

(a) Ensure that all eligible citizens, that is to say the citizens qualified under the 4th Schedule, are registered as voters;

(b) Ensure that every citizen who is eligible to vote in an election or referendum has an opportunity to cast a vote, and must facilitate voting by persons with disabilities or special needs;

(c) Ensure that all political parties and candidates contesting an election or participating in a referendum have reasonable access to all material and information necessary for them to participate effectively;

(d) Provide all political parties and candidates contesting an election or participating in a referendum with fair and equal access to electronic and print media, both public and private; and

(e) Ensure the timely resolution of electoral disputes.”

Section 155(1)(c) of the Constitution relates to 'universal adult suffrage and equality of votes'.

The question is whether the provision necessarily means that every person without further requirements for qualification is entitled to vote.

It appears to me that the answer, in the negative, lies in sub-section 2(a) of the same provision. It restates the requirement for every voter to be qualified to vote in terms of the 4th Schedule to the Constitution.

Equality of votes, in my view, simply relates to the fact that no vote is more important or weightier than the other.

Section 155 is still subject to the rest of the Constitution, and, in particular, the 4th Schedule, and, therefore, the constituency-based residential requirements are still applicable.

Section 155(2)(b) clearly provides that every citizen eligible to vote must be availed the chance to vote. The key is in the eligibility to vote. The section itself is a secondary provision. It only applies after a person has brought himself within the strictures of section 67 and the 4th Schedule of the Constitution.

I find, in the result, that, since it cannot stand alone, section 155 of the Constitution does not assist the applicants' case.

It is trite that the Constitution is a legal instrument which falls to be interpreted, generally, according to the same principles that govern the interpretation of any other legislation.

In this respect, it is important to note, as stated in the case of Rushesha and Others v Dera and Others CC24-17, that the Constitution evinces one singular document, one singular law which is consistent within itself. This principle is aptly explained as follows in Tsvangirayi v Mugabe and Others CC24-17:

“The preferred rule of interpretation is that all relevant provisions having a bearing on the subject for interpretation must be considered together as the whole in order to give effect to the objective of the Constitution, taking into account the nature and scope of the rights, interests, and duties forming the subject matter of the provisions.”

In the South African case of State v Zuma and Others 1995 (2) SA 642 (CC), cited in the respondents' heads of argument, it was stated as follows:

“…,. We must heed LORD WILBERFORCE's reminder that even a Constitution is a legal instrument, the language of which must be respected. If the language used by the lawgiver is ignored in favour of a general resort to values the result is not interpretation but divination…,.”

When these principles are applied to the circumstances of this case, it becomes evident that an interpretation of all the provisions of the Constitution, as discussed above, that deal with the question of who may vote, where, and how, makes it abundantly clear that the Zimbabwean electoral system is constituency-based.

The constituencies, in terms of section 160 of the Constitution, are 210 in number and are located within the boundaries of the country.

The Constitution does not mandate the setting up of constituencies outside the borders of Zimbabwe.

This, in my view, directs attention to what the true intention of the Legislature was in this respect.

It appears to be clear that the exclusion of the diaspora vote, as can be evinced from the constitutional provisions referred to, was consciously contrived and therefore intended.

As stated in State v Zuma and Others 1995 (2) SA 642 (CC) the language used by the Legislature in effecting this result is not one that this Court can ignore in favour of values, no matter how meritorious, pertaining to the desirability or otherwise of permitting the diaspora vote. This is because the language is clear in its meaning and does not admit of any ambiguity.

In its wisdom, and for reasons that are not apparent, the Legislature chose to expressly exclude Zimbabwean citizens not in Government service, but based abroad, from voting in the country's harmonised elections. Had the intention been not to so exclude this group of citizens from voting, the Legislature would have clearly stated so.

This Court, dealing with constitutional interpretation, in Rushesha and Others v Dera and Others CC24-17, made the point that even what is not said has its own implications. The court remarked:

“The interpretation of a statute, and indeed a Constitution, is based not only on what the provision says but also on what the provision does not say…,.”

That the exclusion of the diaspora vote might have been intended is further demonstrated by the fact that this is not the first time that the issue of the diaspora vote has been brought before this Court.

There is a presumption that Parliament is aware of court judgments; Dodson v Potomac Mack Sales & Serv, 241 Va. 89, 94, 400 S.E.2d 178, 180 (1991); Waterman v. Halverson 261 Va. 203, 207, 540 S.E.2d 867, 869 (2001).

When enacting laws that might impact on a certain area, the Legislature is presumed to be aware of the judgments of the courts on those issues.

As far back as 2002 and 2005, in the cases of Registrar General of Elections & Ors v Morgan Tsvangirai 2002 (1) ZLR (S) and Madzingo and Others v Minister of Justice and Others 2005 (1) ZLR 171 (S), respectively, this Court held that the diaspora vote is not provided for in the law and that the impugned sections were not unconstitutional.

The current Constitution was enacted in 2013, by which time the Legislature already knew that the law did not provide for a diaspora vote. However, no provision was inserted into the Constitution to expressly reverse this status quo.

Against this background, the only interpretation that accords with the Constitutional structure is that there is no legislative framework set out therein for the diaspora vote.

Bearing the foregoing in mind, I now turn to consider the other questions raised by this application....,.

The influence, if any, of International Conventions and Electoral Laws

The first applicant approached the African Commission on Human and Peoples' Rights in 2012 arguing that Zimbabwe was in violation of Articles 2, 3(1), (2), 9 and 13(1) of the African Charter on Human and Peoples' Rights for the reason that the erstwhile Constitution as read with section 72 of the Electoral Act restricted his right to vote.

The African Commission gave the following order:

1. That Zimbabwe allows Zimbabweans living abroad to vote in the referendum of 16 March 2013 and the general elections thereafter, whether or not they are in the service of the Government;

2. That Zimbabwe provides all eligible voters, including Gabriel Shumba, the same voting facilities it affords to Zimbabweans working abroad in the service of the Government; and

3. That Zimbabwe takes measure to give effect to its obligations under the African Charter in accordance with Article 1 of the African Charter, including in areas of free participation in Government.

Section 327(2) of the Constitution provides as follows:

“(2) An international treaty which has been concluded or executed by the President or under the President's authority —

(a) Does not bind Zimbabwe until it has been approved by Parliament; and

(b) Does not form part of the law of Zimbabwe unless it has been incorporated into the law through an Act of Parliament.”

The applicants argue that Zimbabwe is bound to implement the findings of the African Commission.

However, the country has not domesticated the African Charter on Human and Peoples' Rights in the manner outlined in section 327(2) of the Constitution. This section has to be read in light of section 46 of the Constitution which provides:-

“46 Interpretation of Chapter 4

(1) When interpreting this Chapter, a court, tribunal, forum or body —

(a) Must give full effect to the rights and freedoms enshrined in this Chapter;

(b) Must promote the values and principles that underlie a democratic society based on openness, justice, human dignity, equality and freedom, and, in particular, the values and principles set out in section 3;

(c) Must take into account international law and all treaties and conventions to which Zimbabwe is a party;

(d) Must pay due regard to all the provisions of this Constitution, in particular the principles and objectives set out in Chapter 2; and

(e) May consider relevant foreign law; in addition to considering all other relevant factors that are to be taken into account in the interpretation of a Constitution.

(2) When interpreting an enactment, and when developing the common law and customary law, every court, tribunal, forum or body must promote and be guided by the spirit and objectives of this Chapter.”

(Although the African Chapter has not been incorporated into our law, through an Act of Parliament, many of its substantive provisions accord with the rights and freedom guaranteed in our Constitution. These, however, do not include any provision addressing the issue of the diaspora vote).

Zimbabwe is a dualist State as evidenced by sections 327(2) and 34 of the Constitution which exhorts the State to ensure incorporation into our domestic law of all international conventions and treaties to which Zimbabwe is a party.

The African Charter is not a self-executing treaty, and, as such, it has to be specifically incorporated into Zimbabwean law, that is, the Constitution of Zimbabwe.

This, I find, reinforces the respondents' argument that the solution to the applicants' problem in casu lies in them lobbying the Government to amend the Constitution, including domestication of relevant treaties and conventions, so that it allows the diaspora vote. The relevance of this course of action is highlighted in the case of Foster & Elam v Neilson 27 U.S. (2 Pet.) 253, (1829)…, where MARSHAL CJ had this to say:

“Our Constitution declares a treaty to be law of the land. It is, consequently, to be regarded in Courts of Justice as equivalent to an act of legislature, whenever it operates of itself, without the aid of any legislative provision. But, when the terms of the stipulation import a contract – when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule of law for the Court.”

The Constitutional Court remains guided by the wording of the Constitution, and has interpreted its provisions as expressly excluding the diaspora vote.

Amendments to the Constitution are the prerogative of the Legislature. In other words, the court does not dictate to the law maker what the content of the law should be. It can only declare what such content should not be.

The parties, in their heads of argument, made reference to the state of electoral laws in a number of countries.

It is evident that different countries impose different laws to regulate the right of their citizens, based locally or abroad, to vote in their general elections. While there are some countries that do not admit of, or even address, the diaspora vote in their law, (eg. Uganda, Zambia, Nigeria) there are many others that allow it, to differing degrees and on different pre-conditions (eg. South Africa, Germany, Mozambique, New Zealand and others).

What is clear, however, in respect of the international electoral systems cited, is the fact that the right to vote is regulated by law. Different countries have different methods employed to allow or not allow the diaspora vote depending on the provisions of their Constitutions.

The determination has already been made that Zimbabwean law does not provide for the diaspora vote. This should be a basis for agitating for the amendment of the Constitution at the request of any aggrieved party.

The fact that other countries have the diaspora vote provided for in terms of their laws would be an effective lobbying tool in that respect. Such laws, however, do not entitle this Court to interpret legislation in a manner that confers on the applicants a right which does not arise from the Constitution. The only benefit to this Court, of these laws, might lie in their persuasive effect in the interpretation of any similar or related law that may be passed by our Legislature to regulate the right of those based abroad to vote.

In the result, I find that the international treaty cited by the applicants, not having been appropriately incorporated into our domestic legislation, has no binding effect in the determination of the dispute in this matter.

I find, too, that the international electoral laws which the applicants have made reference to offer little, if any, assistance in the interpretation of the Constitutional provisions, as currently phrased, that pertain to our national elections.

HB10-15 : INTRO-WISE CATERING (PVT) LTD vs COSIRA COMMUNICATIONS GLOBAL and COSIRA AFRICA (PTY) LIMITED and ZIMBABWE PLATINUM MINES (PVT) LTD
Ruled By: MAKONESE J

This is an application for a declaratory order.

This court is invited to declare that Cosira Communications Global (first respondent) and Cosira South Africa (Pty) Ltd (second respondent) which was previously known as Cosira International (SA) (Pty) Ltd are one and the same entity.

To make such declaration, this court is asked to lift the veil of corporate personality on the grounds that such corporate personality has been used as a device to cover up fraud or improper conduct.

It is contended, on behalf of the applicant, that although the first and second respondents have distinct and separate legal personas, they are in fact one economic entity.

The first and second respondents strenuously resist the order sought and argue that there is no factual or legal basis for an order that the liabilities of one corporate entity be deemed to be liabilities of another.

The first and second respondents aver that the order sought is not legally competent and that where the corporate veil is lifted the court must effectively look behind the corporate veil to establish the shareholders of the corporate entity and then attach such liability to them.

The respondents pray that the application be dismissed for lack of merit.

Background

The facts that are common cause are these:

In November 2012, Intro-wise Catering (Pvt) Ltd (applicant) entered into a contract with Cosira South Africa (Pty) Ltd (second respondent) in terms whereof the applicant was to provide catering, housekeeping, and laundry services to Cosira South Africa (Pty) Ltd (the 2nd respondent) at the mining site of Zimbabwe Platinum Mines (Pvt) Ltd (third respondent).

The said agreement was to run continuously from November 2012 until termination by either party giving the appropriate notice in accordance with the agreement.

As a result of the agreement, the applicant supplied catering, housekeeping, and laundry services to the second respondent up to May 2013.

Invoices were raised regularly and a balance of US$155,144=22 remained outstanding for the period up to the end of May 2013.

It was the belief and understanding of the parties that the applicant was being sub-contracted to provide service to a company which had a running contract with Zimbabwe Platinum Mines (Pvt) Ltd (third respondent).

It later transpired that it was Cosira Communications Global (the first respondent), instead, that had a running contract with Zimbabwe Platinum Mines (Pvt) Ltd.

It was established that Cosira South Africa (Pty) Ltd (second respondent) never had any contract with Zimbabwe Platinum Mines (Pvt) Ltd at all.

It is Cosira Communications Global (the first respondent) that had a contract with Zimbabwe Platinum Mines (Pvt) Ltd and it is Cosira Communications Global which consumed the services which were provided by the applicant.

The applicant argues that Cosira Communications Global and Cosira South Africa (Pty) Ltd (first and second respondents) were aware, at all material times, that it was only Cosira Communications Global (first respondent) and not Cosira South Africa (Pty) Ltd (second respondent) which had a contractual relationship with Zimbabwe Platinum Mines (Pvt) Ltd.

Cosira South Africa (Pty) Ltd (second respondent) has tendered into court authenticated documents which reflect, that, on the 10th July 2013, Cosira South Africa (Pty) Ltd was placed under provisional liquidation by order of the North Gauteng High Court, sitting at Pretoria, South Africa.

Cosira South Africa (Pty) Ltd (second respondent) was placed under final liquidation on the 27th August 2013.

An order of the High Court of South Africa was issued on the 30th July 2013, authorizing the liquidators to sue on behalf of, and to defend proceedings against, Cosira South Africa (Pty) Ltd (second respondent).

Cosira South Africa (Pty) Ltd's liquidators dispute liability of the outstanding amount and further state that the applicant has failed to make out a case for the piercing of the corporate veil as Cosira Communications Global and Cosira South Africa (Pty) Ltd are separate legal personalities.

Point in Limine

The applicant argues that the application is not opposed by Cosira Communications Global (first respondent) and Zimbabwe Platinum Mines (Pvt) Ltd (third respondent). The only opposition before the court is on behalf of Cosira South Africa (Pty) Ltd (second respondent).

The applicant then extends the argument to state that the opposition before the court is a nullity for reasons set out below:

(a) Cross-border insolvency and the recognition of foreign liquidators in Zimbabwe

The applicant contends, that, Zimbabwe has no bilateral cross border insolvency treaty with South Africa. As such, so it is argued, in order to be recognized as such in Zimbabwe, the foreign liquidator must apply to the High Court of Zimbabwe for foreign recognition and assistance.

Local creditors must be notified of such application.

Further, the applicant notes, that, granting recognition to a foreign liquidator is at the court's discretion. This discretion is absolute but recognition is usually granted in the interest of comity or convenience.

My view on the matter is simply that evidence placed before me clearly indicates that Cosira South Africa (Pty) Ltd (second respondent) has been placed under liquidation in South Africa.

There is no legal basis for that order of liquidation to be registered in this court to give recognition to such an order.

There is no merit in the argument in that the order of liquidation granted by the court in South Africa must be recognized in this jurisdiction first before the respondents can be heard: see the remarks of INNES JP in the case of Ex parte BZ Stegmann 1902 TS 40…, where the learned judge comments as follows:

“But, on the other hand, the same court, acting from motives of comity or convenience, is equally justified in allowing the order of the Judge of the domicile to operate within its jurisdiction, and in assisting the execution or enforcement of such order. The matter is entirely one for its own discretion.”

In the circumstances, therefore, and exercising my judicial discretion, I do not consider it necessary for the liquidation order relating to Cosira South Africa (Pty) Ltd (second respondent) to be recognised first in this court formally. I am satisfied that the order is valid and that the issues for determination can be disposed of without considerations of cross-border insolvency and the recognition of foreign liquidators.

I would accordingly dismiss the point in limine.

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Law Portal
Zimbabwe

Final Orders re: Approach iro Registration, Recognition & Enforcement of Foreign Judgments, Lex Causae and Lex Fori

Appealed
SC13-12 : VENETIAN BLINDS SPECIALISTS LTD vs APEX HOLDINGS (PVT) LTD
Ruled By: GARWE JA, OMERJEE AJA and GOWORA AJA

View Appeal
HH87-10 : VENETIAN BLINDS SPECIALISTS LIMITED vs APEX HOLDINGS (PRIVATE) LIMITED
Ruled By: PATEL J

SC33-15 : APEX HOLDINGS (PRIVATE) LIMITED vs VENETIAN BLINDS SPECIALISTS LIMITED
Ruled By: GWAUNZA JA, GOWORA JA and GUVAVA JA

HH169-09 : GRAMARA (PRIVATE) LIMITED and COLIN CLOETE vs GOVERNMENT OF THE REPUBLIC OF ZIMBABWE and ATTORNEY-GENERAL OF ZIMBABWE and NORMAN KAPANGA (INTERVENER)
Ruled By: PATEL J

HH95-10 : TIISO HOLDINGS (PTY) LIMITED vs ZIMBABWE IRON & STEEL COMPANY LIMITED
Ruled By: PATEL J

HB10-15 : INTRO-WISE CATERING (PVT) LTD vs COSIRA COMMUNICATIONS GLOBAL and COSIRA AFRICA (PTY) LIMITED and ZIMBABWE PLATINUM MINES (PVT) LTD
Ruled By: MAKONESE J

Categories

Law Portal Zimbabwe

Final Orders re: Approach iro Registration, Recognition & Enforcement of Foreign Judgments, Lex Causae and Lex Fori

Appealed SC13-12 : VENETIAN BLINDS SPECIALISTS LTD vs APEX HOLDINGS (PVT) LTD Ruled By: GARWE JA, OMERJEE AJA and GOWORA AJA

View Appeal HH87-10 : VENETIAN BLINDS SPECIALISTS LIMITED vs APEX HOLDINGS (PRIVATE) LIMITED Ruled By: PATEL J

SC33-15 : APEX HOLDINGS (PRIVATE) LIMITED vs VENETIAN BLINDS SPECIALISTS LIMITED Ruled By: GWAUNZA JA, GOWORA JA and GUVAVA JA

HH169-09 : GRAMARA (PRIVATE) LIMITED and COLIN CLOETE vs GOVERNMENT OF THE REPUBLIC OF ZIMBABWE and ATTORNEY-GENERAL OF ZIMBABWE and NORMAN KAPANGA (INTERVENER) Ruled By: PATEL J

HH95-10 : TIISO HOLDINGS (PTY) LIMITED vs ZIMBABWE IRON & STEEL COMPANY LIMITED Ruled By: PATEL J

HB10-15 : INTRO-WISE CATERING (PVT) LTD vs COSIRA COMMUNICATIONS GLOBAL and COSIRA AFRICA (PTY) LIMITED and ZIMBABWE PLATINUM MINES (PVT) LTD Ruled By: MAKONESE J

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Law Portal
Zimbabwe

Appealed
SC13-12 : VENETIAN BLINDS SPECIALISTS LTD vs APEX HOLDINGS (PVT) LTD
Ruled By: GARWE JA, OMERJEE AJA and GOWORA AJA

View Appeal
HH87-10 : VENETIAN BLINDS SPECIALISTS LIMITED vs APEX HOLDINGS (PRIVATE) LIMITED
Ruled By: PATEL J

SC33-15 : APEX HOLDINGS (PRIVATE) LIMITED vs VENETIAN BLINDS SPECIALISTS LIMITED
Ruled By: GWAUNZA JA, GOWORA JA and GUVAVA JA

HH169-09 : GRAMARA (PRIVATE) LIMITED and COLIN CLOETE vs GOVERNMENT OF THE REPUBLIC OF ZIMBABWE and ATTORNEY-GENERAL OF ZIMBABWE and NORMAN KAPANGA (INTERVENER)
Ruled By: PATEL J

HH95-10 : TIISO HOLDINGS (PTY) LIMITED vs ZIMBABWE IRON & STEEL COMPANY LIMITED
Ruled By: PATEL J

HB10-15 : INTRO-WISE CATERING (PVT) LTD vs COSIRA COMMUNICATIONS GLOBAL and COSIRA AFRICA (PTY) LIMITED and ZIMBABWE PLATINUM MINES (PVT) LTD
Ruled By: MAKONESE J